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Morris v. Wisconsin Department of Corrections

United States District Court, W.D. Wisconsin

July 31, 2018


          OPINION & ORDER


         Pro se plaintiff Michael Morris is proceeding in this lawsuit on a claim that defendants Timothy Thomas, Charles Devendorf, Branden Ingenthron, Timothy Douma, Rebecca Kennedy, and Sally Wess retaliated against him in violation of the First Amendment by denying his grievances and loan requests, as well as transferring him from the New Lisbon Correctional Institution (“NLCI”) to the Wisconsin Secure Program Facility (“WSPF”).[1]Currently before the court are numerous motions filed by Morris (dkts. ##47, 48, 57, 58, 60, 67, 69, 73, 76, 77, 78, 93, 95) and the defendants' motion for summary judgment on exhaustion grounds (dkt. #82). For the following reasons, all but one of plaintiff's motions will be denied, defendants' motion will be granted, and this case will be dismissed without prejudice.


         The court addresses Morris's pending motions by category. First, Morris's motion for default judgment against the defendants (dkt. #48) will be denied since defendants filed their answer within the 40-day deadline set by the court (dkt. #46).

         Second, four of Morris's motions seek reconsideration of multiple aspects of the screening order, but the court sees no basis to alter its conclusions. (Dkts. ##47, 57, 67, 73.) As an initial matter, Morris complains that the court denied him leave to proceed on a due process claim related to his education at NLCI. (Dkt. #57.) Yet he fails to provide any reason for the court to reconsider its conclusion that Morris has no liberty interest in either attending or not attending classes at NLCI, nor why he should have been allowed to pursue a grievance related to his experiences with the education department. (See Order (dkt. #46) at 5.) Morris next complains that the court denied him leave to bring a claim for denial of access to courts based on misconstrued facts. The court dismissed this claim because Morris was not attempting to challenge his sentence or conditions of confinement.

         Now, Morris asserts that he was trying to challenge his conditions of confinement, claiming that he had alleged his inability to pursue grievances and secure a legal loan, which thwarted his ability to pursue a temporary restraining order barring his being force-fed. Morris specifically adds that he commenced a lawsuit related to force feeding, but abandoned it because he was unable to exhaust his administrative remedies. However, Morris also attached documents related to that lawsuit, which show that Morris filed an action in Juneau County. While it was dismissed, the reason given was not failure to exhaust; rather, the lawsuit was deemed moot because Morris was transferred to another facility, a conclusion the state court judge only reached after receiving and reviewing all of Morris's filings, which included his petition, an addendum, letters and copies of rejected grievances. (See dkt. #47-1 at 20-30.) Even construing Morris's access to courts claim differently, therefore, the court sees no basis upon which to reconsider its dismissal of this claim.

         Third, three of Morris's motions repeat his earlier complaints seeking to receive legal loans even though he has already hit his maximum allotment for the year. (Dkts. ##58, 69, 77, 93.) As the court has explained multiple times to Morris, there is no evidence that Morris's ability to litigate this matter has been impeded by his having met or exceeded the statutory limits of legal loans. The same still holds true. Although Morris continues to insist that he needs an additional legal loan so that he can obtain writing paper and pens, the fact remains that he continues to file numerous, multi-page motions and other documents with the court, and that his written submissions continue to be legible, suggesting that he remains largely, if not wholly, unimpeded from litigating this matter whether he receives additional legal loans or not. For these reasons, and those previously explained to Morris in the court's orders, these three motions will also be denied.

         Fourth, Morris filed a motion for sanctions (dkt. #60), complaining that the Clerk of Court refused to submit the motions he has filed in his appeal from another one of his lawsuits before this court, Case No. 15-cv-712. Since the record shows this assertion is simply untrue, that motion will similarly be denied. The Clerk of Court has docketed Morris's numerous, post-judgment motions in case '712, all of which are currently under advisement with the court and will be resolved shortly. Morris should realize by now that by virtue of him filing many lawsuits, and within those lawsuits numerous, often repetitive and meritless, motions, resolving his requests takes time. While the court endeavors to resolve Morris's most urgent and potentially meritorious motions first, all of Morris's issues are addressed in turn, albeit not to his satisfaction. Therefore, to the extent that Morris would like any future lawsuits or filings to reach resolution sooner, he may consider limiting his filings to those necessary to litigate his claim.

         Fifth, Morris has filed several motions regarding his deadline to identify the Doe defendant. (Dkts. ##67, 69, 73, 76.) Amending that deadline is unnecessary, as Doe has now been identified as Charles Devendorf (see dkt. #71), who is already named as a defendant in this lawsuit. Accordingly, these motions will be denied as moot.

         Finally, Morris filed a motion seeking the court's assurance that it is receiving his filings. (Dkt. #78.) The court will grant that motion to the extent that (1) this court receives and reviews all of his filings submitted properly to the court; and (2) attached to this order is a complete list of the filings in this case. That said, it is not a function of this court to ensure all parties' filings are made as intended. In the future, therefore, if Morris has concerns about whether certain filings have made it into the record of a specific case, it remains his responsibility to request assurances or docket sheets directly from the Clerk of Court.


         Under 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Generally, a prisoner must also “properly take each step within the administrative process” to comply with § 1997e(a). Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). This includes following instructions for filing the initial grievance, Cannon v. Washington, 418 F.3d 714, 718 (7th Cir. 2005), and filing all necessary appeals, Burrell v. Powers, 431 F.3d 282, 284-85 (7th Cir. 2005), that are “in the place . . . at the time, [as] the [institution's] administrative rules require.” Pozo, 286 F.3d at 1025.

         The purpose of this exhaustion requirement is to give the prison administrators a fair opportunity to resolve the grievance without litigation. Woodford v. Ngo, 548 U.S. 81, 88-89 (2006); see Turley v. Rednour, 729 F.3d 645, 650 (7th Cir. 2013) (“once a prison has received notice of, and an opportunity to correct, a problem, the prisoner has satisfied the purpose of the exhaustion requirement”). If a prisoner fails to exhaust administrative remedies before filing his lawsuit, then the court must dismiss the case. Perez v. Wisconsin Dept. of Corr., 182 F.3d 532, 535 (7th Cir. 1999). Because exhaustion is an affirmative defense, however, defendants bear the burden of establishing that plaintiff failed to exhaust. Jones v. Bock, 549 U.S. 199, 216 (2007).

         To exhaust state administrative remedies in Wisconsin, inmates must follow the inmate complaint review process set forth in the Wisconsin Administrative Code § DOC 310. Under these provisions, prisoners start the complaint process by filing an inmate complaint with the institution complaint examiner within 14 days after the occurrence giving rise to the complaint. Wis. Admin. Code § DOC 310.09(6). The complaint must “[c]ontain only one issue per complaint, and shall clearly identify the issue.” Id. § 310.09(e). If the institution complaint examiner rejects a grievance for procedural reasons without addressing the merits, an inmate may appeal the rejection. Id. § 310.11(6). If the complaint is not rejected, the institution examiner makes a recommendation to the reviewing authority as to how the complaint should be resolved. Id. ยง 310.11(6). The offender complaint is then decided by the appropriate reviewing authority, whose decision can be appealed by the inmate to a ...

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